cretion in giving to the mother the custody of the child of such tender years, and so apparently in need of a mother's attention. Indeed, there is no very serious contention by the appellant upon this part of the case. He urges, however, that the court erred in taxing against him the costs of the proceeding.

The Code of Civil Procedure provides, in reference to costs, as follows: "Costs may be allowed, of course, to the plaintiff, upon a judgment in his favor, in the district court, in the following cases: * * *Fourth, in special proceedings in the nature of an action." Section 495, Code Civil Proc. "A judgment is the final determination of the rights of the parties in an action or proceeding." Section 238, Id. The disposition by the district court of the application for a writ of habeas corpus was a judgment. It was the final determination of the rights of the parties. That judgment was in favor of the relator. The question, then, is, whether this is a judgment in a special proceeding in the nature of an action. Section 495, supra. If such, it would seem that the costs should be allowed to the relator. We are of opinion that the proceeding upon habeas corpus is in the nature of an action. There are parties to the proceeding. In practice they are not usually called "plaintiff" and “defendant,” but “relator" and "respondent;" but we do not consider that this matter of the names of the parties in the title of an action is important. Anderson's Law Dictionary defines an action as follows: "The lawful demand of one's right (3 Bl. Comm. 116) in a court of justice. McBride's Appeal, 72 Pa. St. 483." Another definition in the same dictionary is: "An action or suit is any proceeding for the purpose of obtaining such remedy as the law allows." The definition cites Harris v. Insurance Co., 35 Conn. 310. In that case the court, speaking of "suit" or "action," says: "But by a suit, within the meaning of this provision of the policy, [of insurance,] is more clearly meant any proceeding in the court for the purpose of obtaining such remedy as the law allows a party under the circumstances." Black's Law Dictionary, under the title of "Action," gives this definition: "The legal and formal demand of one's rights from another person or party, made and insisted on in a court of justice." In the Milligan Case, which was a habeas corpus proceeding, Mr. Justice Davis, delivering the opinion of the court, said: "In any legal sense, ‘action,' 'suit,' and 'cause' are convertible terms. Milligan supposed he had a right to test the validity of his trial and sentence, and the proceeding which he set in operation for that purpose was his cause or suit. It was the only one by which he could recover his liberty. He was powerless to do more. He could neither instruct the judges, nor control their action, and should not suffer because, without fault of his, they were unable to render a judgment.

But the true meaning of the term 'suit' has been given by this court. One of the questions in Weston v. City Council of Charleston [2 Pet. 449] was whether a writ of prohibition was a suit; and Chief Justice Marshall says: "The term is certainly a comprehensive one, and is understood to apply to any proceeding in a court of justice by which an individual pursues that remedy which the law affords him.' Certainly, Milligan pursued the only remedy which the law afforded him. Again, in Cohens v. Virginia [6 Wheat. 264] he says: 'In law language, a suit is the prosecution of some demand in a court of justice;' also, 'to commence a suit is to demand something by the institution of process in a court of justice, and to prosecute the suit is to continue that demand.' When Milligan demanded his release by the proceeding relating to habeas corpus, he commenced a suit; and he has since prosecuted it in all the ways known to the law. One of the questions in Holmes v. Jennison [14 Pet. 540] was whether, under the 25th section of the judiciary act, a proceeding for a writ of habeas corpus was a suit. Chief Justice Taney held that, if a party is unlawfully imprisoned, the writ of habeas corpus is his appropriate legal remedy. It is his suit in court to recover his liberty.' There was much diversity of opinion on another ground of jurisdiction; but that, in the sense of the 25th section of the judiciary act, the proceeding by habeas corpus was a suit, was not controverted by any except Baldwin, Justice, and he thought that 'suit' and 'cause,' as used in the section, mean the same thing." Ex parte Milligan, 4 Wall. 112, 113. Under these views of the word "action," and especially the opinion of the United· States supreme court as to a habeas corpus proceeding, we are satisfied that subdivision 4 of section 495 of our Code of Civil Proce dure is applicable to the inquiry in hand; that is to say, that this habeas corpus matter is a special proceeding in the nature of an action. It is a proceeding to determine between these parties the right to the custody of their infant child. Referring to one of the definitions above cited, it is a "proceeding for the purpose of obtaining such remedy as the law allows." The result of the proceeding is the judgment which we are reviewing, and section 495 says that upon such judgment, in such special proceedings, costs shall be allowed to the plaintiff. We cannot believe that the fact that the prevailing party is called "relator" instead of "plaintiff" is of any importance. The sense of the word "plaintiff" is that the person so called is the complaining party,-the party who is coming into court asking for rights which he claims. That is what the relator does in this proceeding, and we believe that the spirit and intention of section 495, when it uses the word "plaintiff," is to include such complaining and demanding party as the relator in a habeas corpus proceeding, even

though by custom he is called by a name other than "plaintiff." The judgment of the district court is therefore affirmed.

ment. There was no controversy raised in the action as to the furnishing of said building materials by plaintiff, or the use thereof by defendants in the erection of said

concur.

(13 Mont. 269)

BONNER ▼. MINNIER et al. (Supreme Court of Montana. Sept. 5, 1893.) MECHANIC'S LIEN-WHAT CONSTITUTES-LIABILITY OF HOMESTEAD.

A lien for materials furnished is a "me chanic's lien," within the meaning of Code Civil Proc. § 323, providing that such a lien shall not be affected by the provisions for homestead exemptions. De Witt, J., dissenting.

Appeal from district court, Deer Lodge county; D. M. Durfee, Judge.

But

Action by E. L. Bonner against Michael Minnier and others. From a judgment for defendants, and an order denying a motion for a new trial, plaintiff appeals. Reversed. Statement of the case by HARWOOD, J.: This action was brought to obtain judgment, and foreclose a lien to enforce payment, for materials furnished and used in the construction of a certain house in the village of Champion, Deer Lodge county. It appears that said house was built upon a piece of land theretofore vacant, being part of a quartz lode mining claim, purchased by defendant Minnier from one Baudet, which purchase was originally evidenced by a bill of sale executed by Baudet to Minnier. it appears to be conceded that the money used in said purchase belonged to defendant Mrs. Minnier; that, while the title to the property stood in that condition, the defendant Minnier, with the knowledge and approval of his wife, commenced the erection of a house on said land, and purchased from plaintiff, and used in said structure, certain lumber and other materials; that, to secure payment for said building material, plaintiff filed his account thereof, and notice of lien on said property, as provided by law; that, some time after the commencement of the construction of said house, a formal conveyance of said premises was made by said original owner, Baudet, and defendant Minnier, to his wife, Mrs. Minnier. appears to have been constructed and arranged so as to be used for residence purposes, or as a place of business, or for both such purposes; that, as soon as the house was sufficiently constructed to admit of habitation, defendant and his wife moved therein, and occupied the same continuously as their home, and Mrs. Minnier also fitted up and operated a barber's shop in one room of said house; that defendants own no other real property as a homestead or otherwise; that defendants failed to pay for said building materials, wherefore this action was brought to foreclose sald lien, and subject | said premises to sale to enforce such pay

Said house

alleged. The only defense set up was that defendants claimed said premises as their homestead, and that the same, being a homestead, was not subject to a lien for said building materials so purchased and used in the improvement thereof. There was some controversy in the case as to whether said premises constituted the home of defendants at the time said materials were furnished and used in the improvement thereof; but the trial court sustained the contention of defendants that said premises constituted their homestead, and the court further held that the statutes of this state exempt homesteads from the charge of a lien for building materials procured and used in the erection of improvements thereon, and judgment was rendered accordingly, from which judgment, and an order overruling plaintiff's motion for a new trial, this appeal was prosecuted.

Brantley & Scharnikow, for appellant. W. H. Trippet, for respondents.

HARWOOD, J., (after stating the facts.) We think, under the facts shown in this case, the premises in question were properly held to constitute defendants' homestead. The important question of law involved in this appeal is whether a homestead is exempt from foreclosure and sale to satisfy a lien created by law in favor of one who furnishes materials purchased and used by the owners of such homestead in the improvement thereof. It is not disputed that by the provisions of chapter 82, p. 1028, of the Compiled Statutes of this state, a lien is expressly created in favor of parties furnishing materials contracted for and used by the owners of land in making improvements thereon, without any exception in favor of homestead premises. But it is contended by respondents that, notwithstanding the provisions of that statute, the statute providing exemption of homesteads and other property from forced sale on execution (sections 321-330, Code Civil Proc.,) withholds the homestead from the operation of such lien if it accrued for material alone, furnished and used in the improvement of the homestead. To maintain this proposition, respondents rely on a strict and very narrow interpretation and application of the clause of section 323, Code Civil Proc., which provides that "such exemption shall not affect any laborer's or mechanic's lien, or extend to any mortgage thereon lawfully obtained." It is argued that this provision is not broad enough to include the lien de clared by statute in favor of one who simply furnishes materials used in the improvement of a homestead; and that, consequent

ly, the plaintiff, who furnished material only, which was procured and used by defendants in the improvement of their homestead, is barred of relief, by way of enforcement of said lien. In the case of Merrigan v. English, 9 Mont. 126, 22 Pac. Rep. 454, the court refused to so construe and apply. the provisions of the exemption statute just cited as to deny the enforcement of a lien on a homestead for material furnished-namely, a mantel-in favor of the mechanic who furnished the same, as well as the labor involved in setting said mantel in the building. The only real difference between that case and the one at bar appears to be that, in the former case, the lien claimant occupied the position of furnisher of material, as well as labor, on the premises, in shaping the material so furnished into the building; whereas, in the case at bar, the lien claimant furnished and delivered material, without any labor towards the erection of the building on the premises. If the view urged by respondents is adopted, the effect of such holding would appear to be that one who manufactured, hauled, and delivered the brick, or quarried, cut, hauled and delivered the stone, or went into the forest, cut, manufactured, transported, and delivered the lumber contracted for, and used in the erection of improvements on a homestead, would be denied enforcement of the lien which the law declares he shall have to secure payment for such materials, because he would be simply the furnisher of material for the structure, like the plaintiff, and would, according to such construction and application of the exemption statute, not be included within the meaning and intent of the legislature in declaring that such exemptions shall not affect the liens of laborers and mechanics. We do not think such a view gives effect to the intent of the legislature, as manifest in these statutes. Even without any further expression of the legislative intent on this point than the clause of section 323 above referred to, we could not adopt the view urged by respondents as giving effect to the intent of the law. We are satisfied that, in providing that such exemptions shall not affect any laborers' or mechanics' liens, the legislature referred to the lions for material and labor provided for by the statutes of this state commonly mentioned as the "Mechanic's Lien Law." Such improvements, in fact, comprise labor bestowed upon material, both on and off the premises where the improvement is placed. Payment for the material is payment for the labor expended upon it through all the changes it has undergone, from its natural raw state, until placed in the structure.

But if, in looking at section 323 of the exemption statute alone, there is room to raise doubts as to the intent of the legislature, and room for contention that a homestead claimant may obtain material for improve

ment on his homestead, and enjoy the same without payment, in case no property can be found over and above the exemption, there is still another provision in the same statute which seems to give further light as to the intention of the legislature on the point under consideration, namely, a provision of section 328, wherein it is declared "that this act shall not be construed as to in any manner relate to judgments or decrees renderd on the foreclosure of mortgages, either equitable or legal." The lien under consideration is a specific incumbrance, existing through a positive enactment of the legislature, operating upon certain facts, and the lienor would seem to be entitled to his judgment of foreclosure, on showing the facts and a compliance with the statute, the same as a party, on making out his case, is entitled to judgment for debt, although the debtor may not have property subject to an ordinary execution. Now, when it comes to the execution of these judgments, it is found that the legislature has made a distinction between them in the statute relating to exemptions, declaring, in effect, that such exemptions shall not be construed to affect judgments or decrees of foreclosure of specific incumbrances. If this is not the plain intendment of the provisions of the exemp tion statute last above quoted, we think it would be difficult to conceive or reasonably explain the intent those provisions manifest. The rules of construction that several provisions of statutes relating to the same subject shall be considered and construed toegther, so that all the provisions shall be given reasonable force and effect, if possible, (section 631, Code Civil Proc..) and that, "when a statute is equally susceptible of two interpretations, one in favor of natural right, and the other against it, the former is to be adopted," (section 638, Id.,) both, we think, demand such a construction of the statutes in question as will give force and effect to appellant's lien. Responden:s cite, in support of their position, Richards v. Shear, 70 Cal. 187, 11 Pac. Rep. 607, wherein the court held that the homestead was not subject to sale in satisfaction of a lien for material alone, furnished in the improvement thereof. While there is some likeness, but not entire similarity, in the provisions of the California statute and the clause of section 323 of our Code above quoted, it does not appear that the California court was aided by such a general proviso as we have in section 328 to show the intendment of the legislature. It has been shown that the exemption statute of Montana was not taken from California, in Lindley v. Davis, 7 Mont. 207, 14 Pac. Rep. 717, and Merrigan v. English, supra; and considering the difference of form, as well as additional provisions we have to construe and apply, it would seem to be an abdication of reason to follow the holding in the California case just cited. It should be further ob

served that in a recent case the supreme court of Nebraska placed a construction entirely opposed to that of California on statutory provisions entirely similar. Windmill Co. v. Shay, 48 N. W. Rep. 896. The holding in the case of Duncan v. Batemen, 79 Amer. Dec. 109, cited by respondents, is based upon different statutory provisions than those prevailing in Montana. It was there held that the statute of Arkansas did not create a lien in favor of one who simply furnished material. Such might be the case. The lien depends on the statute for existence. But here it is not disputed that the statute imposes the lien in favor of appellant; and we think, without doubt, the legislature intended the homestead should be subject to a lien, and to foreclosure and sale thereunder for material obtained and used by the owners of the homestead in the improvement thereof. Judgment is therefore reversed, and the cause remanded for proceedings in conformity with the views herein expressed.

PEMBERTON, C. J., concurs.

DE WITT, J., (dissenting.) This action is brought to foreclose a lien for materials furnished for a building of defendants. The case was tried by the court without a jury. Defendants are husband and wife. The court gave a money judgment against Minnier, but denied the lien. Plaintiff appeals. The defense against the lien was that the premises were a homestead, and, as such, "not subject to forced sale on execution or any other final process from a court," (section 322, Code Civil Proc.,) and that a material man did not come within section 323, Id., which provides that "such exemption [homestead] shall not affect any laborer's or mechanic's lien," etc. I will examine these two propositions. Our homestead law is as follows: "A homestead consisting of any quantity of land not exceeding one hundred and sixty acres used for agricultural purposes, and the dwelling house thereon, and its appurtenances, to be selected by the owner thereof, and not included in any town plot, city, or village; or, instead thereof, at the option of the owner, a quantity of land not exceeding in amount one-fourth of an acre, being within a town plot, city or village, and the dwelling house thereon, and its appurtenances, owned and occupied by any resident of this territory, shall not be subject to forced sale on execution, or any other final process from a court: provided, such homestead shall not exceed in value the sum of two thousand five hundred dollars." Section 322, Id. Under the law of this state, there is no provision, as there is in many states, for filing or recording a declaration of homestead. Ownership and occupation by a resident of the state give the right of homestead. The language of the statute is "owned and occupied;" and, even without the word ""occupied" in the statute, the word

"homestead" itself embodies the idea of occupation. Thomp. Homest. & Ex. § 100 et seq. It is accordingly held in many decisions that, to constitute a homestead, there must be occupation. Kurz v. Brusch, 13 Iowa, 371; Moore v. Granger, 30 Ark. 574; Chipman v. McKinney, 41 Tex. 76; Avery v. Stephens, 48 Mich. 246, 12 N. W. Rep. 211; Elston v. Robinson, 23 Iowa, 210; Christy v. Dyer, 14 Iowa, 440; Blum v. Carter, 63 Ala. 235; Charless v. Lamberson, 1 Iowa, 435; Bowker v. Collins, 4 Neb. 494; Drucker v. Rosenstein, 19 Fla. 191, and cases cited on page 195; Thomp. Homest & Ex. § 241; Pryor v. Stone, 70 Amer. Dec. 347, note. Again, if a lien becomes fixed upon premises before they become a homestead, it is held in the decision that the creation of a homestead does not divest the lien. Tuttle v. Howe, 14 Minn. 147, (Gil. 113;) Cogel v. Mickow, 11 Minn. 478, (Gil. 354;) Potshuisky v. Krempkan, 26 Tex. 309; Pope v. Graham, 44 Tex. 198; Thomp. Homest. & Ex. § 317, and cases cited; 9 Amer. & Eng. Enc. Law, p. 465; McComb v. Thompson, 42 Ohio St. 139; Thompson v. Pickel, 20 Iowa, 490; McCormick v. Wilcox, 25 Ill. 274; Estate of McCauley, 50 Cal. 544; Elston v. Robinson, 21 Iowa, 534; Furman v. Dewell, 35 Iowa, 170; Cowgell v. Warrington, 66 Iowa, 666, 24 N. W. Rep. 266; Gunn v. Miller, 43 Ga. 377; D'Ile Roupe v. Carradine, 20 La. Ann. 244; Gunn v. Barry, 15 Wall. 611. See, also, cases cited in last paragraph. Many of the above cases are cited in Thompson on Homesteads, (section 317,) and sustain the text of that author. It is therefore often important to determine when the lien accrued, and when the occupation of the premises as a homestead commenced. this case the material was furnished between February 20 and April 28, 1890. The lien for this material, if any exists, dates from the furnishing of the material, and not from the filing of the lien. Merrigan v. English, 9 Mont. 113, 22 Pac. Rep. 454.

In

The facts in the case at bar are as follows: The building was being erected during the time that this material was furnished. The material so furnished was lumber, molding, lime, glass, windows, doors, etc. The lower part of the house was of logs, a class of material not included in that furnished by plaintiff. It does not appear just when the building was commenced. Some of the witnesses testified that defendant Minnier and wife lived on the other side of the street while the building was being erected. One witness says: "I know this house in controversy, and am acquainted with Mr. Minnier and Mrs. Minnier. I remember when the house was built. They made their home right in the house, and until it was finished. After they had the house commenced, they built a kind of a little house of boards, temporarily, on the back part of the lot, until they could move into the house." All agree that as soon as the house was habitable the defendants